Leuty and Siviter (Child support)

[2021] AATA 1275

Leuty and Siviter (Child support) [2021] AATA 1275 (18 February 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC020265

APPLICANT:  Ms Leuty

OTHER PARTIES:  Child Support Registrar

Mr Siviter

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  18 February 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Leuty provides 72 per cent care of [Child 1] and Mr  Siviter provides 28 per cent care from 10 April 2019 but with effect from 10 April 2019 for Ms Leuty and from 9 June 2020 for Mr  Siviter.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the cost percentages – discretion exercised to revoke existing percentage of care determinations and make new determinations – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. This review is about a change to the percentage of care determinations for Ms Leuty and Mr Siviter in respect of their child [Child 1] (born June 2012).  There has been a child support assessment in place since 8 January 2014.

2. From 1 July 2018 the child support assessment reflected Ms Leuty as having 86 per cent care and Mr Siviter as having 14 per cent care of [Child 1].

3. On 9 June 2020 Mr Siviter notified the Child Support Agency of a change to the care arrangements stating he was providing 50 per cent care and Ms Leuty was providing 50 per cent care of [Child 1] from 10 April 2019.

4. On 10 July 2020 the Child Support Agency made the decision to record that Ms Leuty provides 50 per cent care and Mr  Siviter provides 50 per cent care of [Child 1] from 10 April 2019 but with effect from 10 April 2019 for Ms Leuty and from 9 June 2020 for Mr  Siviter.

5. On 25 August 2020 Ms Leuty objected to this decision and on 30 October 2020 the Child Support Agency disallowed the objection (the objection decision).

6. On 18 November 2020 Ms Leuty applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 18 February 2021.  Ms Leuty and Mr Siviter gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (110 pages).  The Tribunal also received additional information from Ms Leuty prior to the hearing and copies were distributed to the parties (A1-A5).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made and; if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Ms Leuty told the Tribunal there was no court order or other written agreement in place regarding the care of [Child 1].  She said care was arranged informally between the parents.

2. Ms Leuty explained that in April 2019 she resigned as a [manager] as she wanted to find more child-friendly employment and spend additional time with [Child 1].  She said it was around then that Mr Siviter returned to [Town 1] from Perth and his care of [Child 1] changed.  Ms Leuty said initially his care was sporadic but it soon became a regular four nights every fortnight with the odd extra day on occasion.

3. Ms Leuty said she later moved to [Town 2] with [Child 1] but when they returned Mr Siviter continued to have care of four nights a fortnight.  She said it was not until January 2020 that she began working fly-in fly-out and Mr Siviter had increased care.

4. Mr Siviter told the Tribunal that Ms Leuty was correct.  Mr Siviter said he had returned to [Town 1] in April 2019 in order to spend more time with [Child 1] and help support him.  Mr Siviter said although he had increased care of [Child 1] he did not keep a calendar of his care or record the dates.  Mr Siviter said when he contacted the Child Support Agency on 9 June 2020 to discuss the change in care he became confused and misunderstood the way care was determined.  Mr Siviter said he had since provided a statutory declaration in relation to his care of [Child 1].

5. The Tribunal notes in evidence from the Child Support Agency a statutory declaration signed by Mr Siviter and dated 17 November 2020.  Mr Siviter declares that between April 2019 and December 2019 he had care of [Child 1] for approximately 80 nights.  Mr Siviter also declares that from January 2020 to the date of his declaration his care was approximately 91 nights.

6. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences.  The parents agree the pattern of care for [Child 1] changed in April 2019 when Mr Siviter returned to [Town 1].  Ms Leuty has stated that Mr Siviter had care of four nights a fortnight from this time which equates to 28 per cent care.  Mr Siviter agrees.  His statutory declaration supports that his care was approximately 29 per cent during the period from April 2019 to December 2019 which is a similar level.

7. The Tribunal finds that a new pattern of care for [Child 1] commenced from 10 April 2019 with Ms Leuty have 72 per cent care and Mr Siviter having 28 per cent care.

8. Although Ms Leuty has stated that care has changed again since 10 April 2019 this would need to be the subject of a further change of care notification to the Child Support Agency.  Each care change is treated as a separate and distinct event.

9. The existing percentages of care reflected in the assessment for [Child 1] were 84 per cent care to Ms Leuty and 14 per cent care to Mr Siviter.  The Tribunal has found that Ms Leuty provides 72 per cent care and Mr Siviter provides 28 per cent care from 10 April 2019.  This does not result in a change to the cost percentages for [Child 1].

10. Mandatory revocation of care percentages applies under section 54F of the Act where the new care percentage determinations would change the cost percentage. Mandatory revocation of care percentages also applies under section 54G of the Act where one of the parents who was to have at least regular care of the child under the existing determinations now has no care or less than regular care despite the child being made available by the other parent. In this case section 54F and section 54G of the Act do not apply.

11. Section 54H of the Act allows for discretionary revocation of care percentages where the new care percentage determinations affect the care percentage but not the cost percentage, and certain other conditions are met.

12. In relation to discretionary revocation, section 2.2.2 of the “Child Support Guide”, a policy guide issued by the Child Support Agency, states:

    Whether the Registrar revokes an existing care percentage determination under section 54H will depend on the circumstances of the case. If a party to an assessment advises the Registrar of a change in care that would not affect the cost percentage and seeks to have the change reflected on the Register, the Registrar should revoke the existing care percentage determination if there is evidence provided by each party, or evidence which is otherwise readily available, to allow the Registrar to determine new care percentages. This helps to ensure there is an accurate record of the care history on a case. However, if a party does not agree that a change has occurred or the readily available evidence is otherwise not conclusive as to the precise care percentages, the Registrar may decide not to revoke the existing determination and conduct no further investigations. This discretion enables the Registrar to decide to not proceed with unnecessary investigations to determine precise care percentages that would not make a material difference to the assessment.

13. Although not bound by policy as set out in the “Child Support Guide”, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

14. As section 54H of the Act is met, the Tribunal finds the previous determinations can be revoked and replaced with the pattern of care that took place so the records are accurately reflected.

15. The Tribunal finds that Mr Siviter notified the Child Support Agency of the change in care on 9 June 2020 which is more than 28 days after the change occurred. Therefore, according to paragraph 54H(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.

16. The new determinations can be made from 9 June 2020 for Mr Siviter and from 10 April 2019 for Ms Leuty.

New care percentage decision

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Leuty and Mr Siviter under section 50 of the Act.

2. For the reasons outlined, the Tribunal finds that Ms Leuty provides 72 per cent care of [Child 1] from 10 April 2019 and Mr Siviter provides 28 per cent care from 9 June 2020.

Date of effect of new care percentage decision

1. An objection to a care percentage decision does not have to be lodged within 28 days, however, if it is lodged outside the 28-day period and the objection is either allowed in full or in part, the effective date of the objection decision is the date on which the objection was lodged (subsection 87AA(1) of the R&C Act).

2. The Child Support Agency may, if special circumstances exist that prevented the person from lodging the objection within the relevant period, make a determination under subsection 87AA(2) of the R&C Act that subsection 87AA(1) applies as if the reference to 28 days were a reference to such longer period as determined to be appropriate.

3. Where an objection to a care percentage decision is lodged outside the timeframe and the objection is disallowed the date of effect of the objection decision is according to subsection 87AA(1) and therefore subsection 87AA(2) has no application.

4. In this case the Child Support Agency disallowed the objection and so consideration of special circumstances was not required.

5. If, upon review, the Tribunal changes the decision then the Tribunal must also consider the implication of the late lodgement of the objection.

6. Ms Leuty was advised about the outcome of the original decision in a letter from the Child Support Agency dated 10 July 2020.  The Child Support Agency has recorded that Ms Leuty objected to this decision on 25 August 2020.  The Tribunal notes in evidence, however, that on 31 July 2020 Ms Leuty lodged online care advice stating that “care has remained the same as previous assessment” and care is “Not 50/50 as Mr Siviter has claimed”.

7. Ms Leuty told the Tribunal that in submitting the online care advice she thought she was objecting to the original decision.  Ms Leuty said it was only later when a child support officer told her that no objection had been received that she objected again on 25 August 2020.

8. The Tribunal finds the online care advice submitted by Ms Leuty to the Child Support Agency on 31 July 2020 should have been treated as an objection to the original decision made on 10 July 2020.  Given Ms Leuty objected less than 28 days after she was served with notice of the original decision, the Tribunal is satisfied that consideration of any special circumstances is not required in this case as the objection was made within the prescribed timeframe.

9. Accordingly, the date of effect of the Tribunal’s decision can be 9 June 2020 for Mr Siviter and 10 April 2019 for Ms Leuty.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Leuty provides 72 per cent care of [Child 1] and Mr Siviter provides 28 per cent care from 10 April 2019 but with effect from 10 April 2019 for Ms Leuty and from 9 June 2020 for Mr Siviter.